October 27, 2017 201502067

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  October 27, 2017



CLAIM NO. 201502067



DAVID DAUGHERTY                                 PETITIONER

















                       * * * * * *



BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


ALVEY, Chairman.  David Daugherty (“Daugherty”) appeals from the decision rendered June 19, 2017 by Hon. R. Roland Case, Administrative Law Judge (“ALJ”).  Relying upon the opinion of Dr. Byron T. Westerfield, the ALJ determined Daugherty contracted coal workers’ pneumoconiosis (“CWP”) while working for Warrior Coal (“Warrior Coal”).  He awarded benefits based upon a 25% disability rating pursuant to KRS 342.732(1)(b)1.    The ALJ found Warrior Coal was not entitled to credit for a settlement Daugherty had entered into for CWP benefits while working for a previous employer.  Daugherty also appeals from the July 10, 2017 order denying his petition for reconsideration.

          On appeal, Daugherty argues Dr. Westerfield’s opinions should have been afforded presumptive weight, including his statement regarding total disability, and the ALJ’s decision should be reversed and remanded for a determination in accordance with the holding in Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  He also argues KRS 342.760[1] is unconstitutional because it unlawfully discriminates between workers who are disabled from CWP and those who are disabled due to a pneumoconiosis caused by a different particulate/disease.  Because the ALJ acted within his discretion in awarding benefits based upon a 25% disability, and he was not compelled to rely upon Dr. Westerfield’s gratuitous statement regarding total disability, we affirm.  Regarding the second issue on appeal, this Board lacks the jurisdiction to rule on the constitutionality of an administrative regulation or statute.  Commonwealth v. DLX, Inc., 42 S.W.3d 624 (Ky. 2001).  Because we have no authority to rule on constitutional issues, we must affirm.    

          Daugherty filed a Form 102 on December 17, 2015, alleging he contracted CWP due to breathing coal dust for over thirty-two years.  He alleged his last date of exposure occurred on April 12, 2014 while employed by Warrior Coal. 

     Daugherty testified by deposition on June 19, 2017.  He is a resident of White Plains, Hopkins County, Kentucky.   He was born on March 31, 1956, and began his coal mine employment in 1979.  He worked as a supply man, roof bolter, rock duster and equipment operator.  His last job with Warrior Coal, which he performed for approximately four years, consisted of operating an end loader and taking supplies to the mine.  Daugherty testified extensively regarding his physical injuries, which are irrelevant to his CWP claim.  He only takes medication for unrelated hypertension.     

     In support of his claim, Daugherty filed the August 30, 2015 x-ray report of Dr. Michael Alexander, M.D., a radiologist.  Dr. Alexander is a B-reader who resides in North Carolina.  Dr. Alexander stated the August 18, 2015 x-ray he read was a film quality 2 due to scapular overlay.  He found Daugherty has CWP in all six lung zones.  He noted p/p opacities, and found a 1/1 profusion.

On May 23, 2016, Daugherty was evaluated by Dr. Bruce Broudy, a pulmonologist in Lexington, Kentucky, at Warrior’s request.  Dr. Broudy noted Daugherty began smoking a pack of cigarettes per day while in his twenties, and continues to smoke cigars.  He noted Daugherty takes blood pressure medication.  Pulmonary function studies demonstrated an FVC of 79% of predicted value, and an FEV1 of 63% of predicted value.  Dr. Broudy reviewed a chest x-ray taken on May 23, 2016.  He stated the film was a quality 1, and he read it as 0/0 for CWP.  Dr. Broudy diagnosed Daugherty with Chronic Obstructive Pulmonary Disorder due to cigarette smoking, and found his lung disease was not due to coal dust exposure.

On January 18, 2017, the Acting Commissioner of the Kentucky Department of Workers’ Claims scheduled Daugherty for an evaluation to be conducted by Commonwealth Respiratory Consultants in Lexington, Kentucky.  Dr. Westerfield of that group conducted the evaluation. In his report dated March 1, 2017, Dr. Westerfield noted Daugherty had over thirty years of coal mining employment.  He noted Daugherty complained of shortness of breath with exertion.  Pulmonary function studies revealed a pre-bronchodilator FVC of 76% of predicted value, and FEV1 of 61% of predicted value. Post-bronchodilator testing revealed an FVC of 86% of predicted value, and FEV1 of 65% of predicted value.  Dr. Westerfield stated an x-ray taken on the day of the evaluation was a film quality 1, and demonstrated q/p opacities in all six lung zones with a 1/1 profusion.  He diagnosed Daugherty as having CWP with pulmonary impairment due to coal dust exposure.  Dr. Westerfield also stated Daugherty is totally disabled due to respiratory disease, and does not have the breathing capacity to return to coal mining work.

Warrior Coal also filed Daugherty’s previous Form 102 filed on August 1, 1995, at which time he alleged a permanent total disability due to exposure to coal dust while working for Costain Coal Company, with a last injurious exposure date of June 2, 1995.  Dr. William Anderson’s report dated March 16, 1993 included the review of an x-ray taken that date as demonstrating a 2/2 profusion.  He also noted Daugherty’s FVC as 80% of predicted value, and FEV1  of 82% of predicted value.  Also included in those records was the June 20, 1995 report of Dr. T. R. Marshall of Fisherville, Kentucky dated June 20, 1995 who read an x-ray taken that date as a quality 1, and demonstrated q/p opacities in all six lung zones.  He read the film as having a profusion of 2/1.  Finally, included in the records was the Form 110 settlement agreement, approved on March 20, 1995.  The settlement agreement stated the Defendant/employer would pay $15,000.00 in lump sum, and the Special Fund would pay $141.17 per week for 318.75 weeks.

The Benefit Review Conference Order and Memorandum, dated April 16, 2017, reflects Daugherty had multiple exposures to coal dust.  He is not employed.  The issues preserved for determination included entitlement to benefits pursuant to KRS 342.732 and credit for Daugherty’s previous CWP settlement.

In the June 19, 2017 Opinion, Award and Order, the ALJ found Warrior Coal is not entitled to a credit for Daugherty’s settlement from a prior CWP claim.  The ALJ summarized the evidence and found Daugherty entitled to an award of benefits based upon a 25% disability pursuant to KRS 342.732(1)(b)1.  Regarding Dr. Westerfield’s report, the ALJ stated as follows: 

Although the report of Dr. Westerfield is not entitled to presumptive weight pursuant to KRS 342.315(2) since it was not performed by a University Evaluator, the Administrative Law Judge finds the report of Dr. Westerfield to be the most persuasive.  Dr. Westerfield was independently selected by the Commissioner of the Department of Workers’ Claims for his evaluation.  Dr. Alexander was selected by the plaintiff with Dr. Broudy selected by the employer. The Administrative Law Judge has considered all of the evidence in accordance with Magic Coal v. Fox, 19 SW3d 88 (Ky. 2000). The Administrative Law Judge chooses to rely on and is persuaded by the opinion of Dr. Westerfield who was independently selected by the Commissioner of the Department of Workers’ Claims. It is therefore found the plaintiff has established the presence of x-ray evidence of coal workers’ pneumoconiosis Category 1/1. Dr. Westerfield opined the plaintiff’s respiratory disability was due to both coal workers’ pneumoconiosis and chronic obstructive pulmonary disease related to cigarette smoking.  Dr. Westerfield opined the plaintiff did not retain the breathing capacity to return to his previous position in coal mine employment. (Emphasis added).


Pursuant to KRS 342.732(2), the Administrative Law Judge must use either the highest FVC value or highest FEV1 value determined from the totality of all such spirometric testing. See  Watkins v. Ampak Mining Inc., 834 SW2d 699 (Ky App. 1992).  Additionally, pursuant to Fields v. Carbon Coal Company,  920 SW2d 880 (Ky App. 1996), the Administrative Law Judge does not have the discretion to choose between  pre-bronchodilator  or  post-bronchodilator  testing,  but  must  accept  the highest. Therefore, consistent with the above, the Administrative Law Judge must accept the post-bronchodilator study performed by Dr. Westerfield indicating FVC function of 86% of predicted values and FEV1 function of 65% predicted values. The Administrative Law Judge can rely on either the highest FVC or highest FEV1.


Since the plaintiff’s post-bronchodilator FEV1 functions were less than 80% but greater than 55%, as found by Dr. Westerfield, the plaintiff will be entitled to a 25% disability rating pursuant to KRS 342.732(1)(b)1.


           Daugherty filed a petition for reconsideration arguing that pursuant to Vision Mining v. Gardner, 364 S.W.3d 455 (Ky. 2011), there is no rational basis to treat coal miners differently from those who suffer from other occupational diseases.  He argued that if he had sustained an occupational disease from another source, he would have either been entitled to a total disability award, or to have his award of PPD benefits enhanced pursuant to the multipliers contained in KRS 342.730.  He requested the ALJ to either amend the award of benefits to one of total occupational disability, or in the alternative to utilize the multipliers contained in KRS 342.730(1)(c)1.  He argued that to not make such a ruling “violates his rights to equal protection under the United States Constitution and the Kentucky Constitution.”

          The ALJ denied Daugherty’s petition for reconsideration in an order issued July 10, 2017.  He specifically found as follows:

Initially, the ALJ would note that the plaintiff’s assumption “the Administrative Law Judge found that the Plaintiff suffers from a 25% whole person impairment as a result of his contracting coal workers’ pneumoconiosis, and suffering from a disabling respiratory impairment” is simply inaccurate. The ALJ, in fact, found the plaintiff had Category 1 coal workers’ pneumoconiosis and an FEV1 of less than 80% and further found the plaintiff was entitled to a 25% disability rating pursuant to KRS 342.732(1)(b)1. The ALJ did not find a specific impairment rating but a disability rating pursuant to the statute.


The plaintiff relies on Vision Mining v Gardner, 364 SW3d 455 (Ky. 2011). However, that case did not change KRS 342.732(1)(b)1 but dealt with the correct procedure to be used. However, in Kentucky Harlan Coal Company v Holmes, 872 SW2d 446 (Ky. 1994) the Court did address the constitutionality of income benefits in coal workers’ pneumoconiosis claims. That case has not been overruled and in fact in Vision Mining, Supra the Court discussed how Holms [sic] was distinguishable from their decision in Vision Mining.


Finally, in any event the ALJ does not have the authority to declare a statute unconstitutional. In fact, in this case the statute in question was declared constitutional in Kentucky Harlan Coal Company v Holmes, Supra.


For all the above reasons the Plaintiff’s Petition for Reconsideration is Overruled.


          As the claimant in a workers’ compensation proceeding, Daugherty had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).   The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable based on the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Magic Coal Co. v. Fox, Supra; Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). (Emphasis added).

          The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences which otherwise could have been drawn from the record.  Whittaker v. Rowland, supra.  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

KRS 342.315(2) generally requires presumptive weight be afforded the clinical findings and opinions of the UNIVERSITY EVALUATOR.  An ALJ has the discretion to reject such testimony where it is determined the presumption has been overcome by other evidence and the reasons for doing so are expressly stated within the body of the decision. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 891 (Ky. 2007); Morrison v. Home Depot, 197 S.W.3d 531, 534 (Ky. 2006); Magic Coal Co. v. Fox, supra.  Whether a party overcomes the presumption established pursuant to KRS 342.315(2) is not an issue of law, but rather a question of fact at all times subject to the ALJ’s discretion as fact-finder to pick and choose from the evidence.  Magic Coal Co. v. Fox, Id.  (Emphasis added).

          Despite Daugherty’s argument to the contrary, the ALJ was free to pick and choose from the evidence in the record as what to rely upon in reaching his determination.  We find the ALJ did not err in relying upon Dr. Westerfield’s opinions to find Daugherty is entitled to an award of benefits based upon a 25% disability pursuant to KRS 342.732(1)(b)1. The ALJ was not, however, compelled to rely upon the gratuitous assertion by Dr. Westerfield that Daugherty is totally disabled.

          The ALJ provided a sufficient explanation for his reliance upon Dr. Westerfield’s report in finding Daugherty is entitled to an award of benefits based upon a 25% disability.  The ALJ explained why he found the opinions of Dr. Westerfield, in those portions of the report he relied upon, more credible than those of others in the record.  However, contrary to Daugherty’s assertions, the ALJ clearly stated he did not afford presumptive weight to Dr. Westerfield’s opinions, nor was he required to.  As noted by the ALJ, Dr. Westerfield was not a university evaluator as described in KRS 342.315.  The ALJ’s decision to rely on portions of Dr. Westerfield’s report falls squarely within the discretion afforded to him.

          Because we determine the ALJ did not err in finding Daugherty is entitled to an award of benefits based upon a 25% disability as outlined in KRS 342.732(1)(b)1, and a contrary result is not compelled, we affirm.

We note Daugherty’s argument regarding the constitutionality of KRS 342.732.  As noted by the ALJ, this issue was previously decided by the Kentucky Supreme Court in  Kentucky Harlan Coal Company v. Holmes, 872 S.W.2d 446, (Ky. 1994).  However, as an administrative tribunal, this Board has no jurisdiction to determine the constitutionality of a statute enacted by the Kentucky General Assembly.  Blue Diamond Coal Co. v. Cornett, 189 S.W.2d 963 (Ky. 1945). See also Vision Mining, Inc. v. Gardner, supra; Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 752 (Ky. 2011).   Likewise, an Administrative Law Judge lacks the power and jurisdiction to review and determine the constitutionality of the statute.  Because this Board has no authority or jurisdiction to reverse rulings of the Kentucky courts, we can render no determination on this issue, and therefore we affirm.

          Accordingly, the June 19, 2017 Opinion, Award and Order and the July 10, 2017 Order on petition for reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED. 

          ALL CONCUR.




























[1] Although Daugherty referenced KRS 342.760 in the heading of the constitutional argument cited in his brief, he subsequently noted his argument actually regarded the constitutionality of KRS 342.732.